ARCHAEOLOGICAL PROTECTION
Indiana Archaeological Statute Held Applicable to Private Property
The Indiana Court of Appeals of has ruled that the Historic Preservation and Archaeology Act is
applicable to privately-owned property. Upon careful examination of the language in the Act,
the court concluded that the state legislature, through its 1989 amendments, had intended to
expand the scope of the law to require that a permit be obtained from the Department of Natural
Resources before private property may be disturbed for the purpose of discovering artifacts or
burial objects. [Whitacre v. State of Indiana, No. 15A05-9204-CV-128 (Ind. Ct. App. Aug. 30,
1993).]
Robert A. Whitacre, an amateur archaeologist, filed this action against the State of
Indiana for a declaratory ruling to resolve the issue of whether he is required to obtain a
permit, pursuant to the Indiana Historic Preservation and Archeology Act, Ind. Code §
14-3-3.4, in order to conduct archaeological investigations on his own property. The law
requires that an archaeological plan must be submitted to and approved by the Indiana
Department of Natural Resources (IDNR) before a permit may be issued.
By way of background, in 1982 Whitacre and his wife had discovered a Hopewell
Indian site with artifacts dating to approximately 150 A.D. on a 40-acre farm in Dearborn
County, Indiana. With the permission of the property owner, the Whitacres began
excavating the site and removing artifacts. Subsequently, in 1987, the couple purchased the farm and continued to excavate and conduct investigations on the property.
After learning that a new law had been passed, Whitacre, in July 1989, asked the
Indiana Department of Natural Resources (IDNR) whether a permit would be required to
conduct archaeological investigations on his own farm. Upon being informed that a
permit would be required, Whitacre filed this declaratory action in state court. Whit-acre
argued that the statute applied only to property owned or leased by the State of Indiana.
The trial court ruled that the Act applied to privately-owned property and the court of
appeals affirmed that decision.
The Indiana Historic Preservation and Archeology Act establishes the Division of
Historic Preservation and Archeology within the IDNR for the purpose of “encouraging
the continuous maintenance and integrity of historic sites and structures and
coordinating the activities of local historical associations, commissions, and private
individuals and organizations interested in the historic culture of Indiana.” As noted by
the court, the preservation of archaeological sites has been recognized by the Indiana
Supreme Court as within the “broad spectrum of legitimate interests of government,” in
Indiana Dept. of Natural Resources v. Indiana Coal Council, Inc., 542 N.E.2d 1000
(1989)[9 PLR 3014]. In that decision, the Indiana Supreme Court observed that “the
information in these sites expands our knowledge of human history and prehistory and
thus enriches us as a state, nation and as human beings.”
Upon application of general rules of statutory construction and consideration of the
policies underlying the Act, the court of appeals ultimately concluded that the law, as
amended, applied to private property. The court succinctly explained its ruling in this
case by its statement that “unless the legislature intended to give the state the power to
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oversee and regulate the treatment of historical and archeological findings on private
property,” provisions within the Act would be “virtually meaningless.”
The court found support for its interpretation of the Act by comparing the law before
and after its amendment. The court observed that before 1989, Indiana Code § 14-33.4-7 provided that “[a] person who knowingly, without a permit, conducts a field
investigation or alters historic property within the boundaries of property owned or
leased by the state commits a Class B misdemeanor.” In 1989, this provision was
changed to:
Except as provided in sections 14 through 16 of this chapter, a person who
knowingly, without a permit, conducts a field investigation or alters historic
property within the boundaries of property owned or leased by the state
commits a Class A misdemeanor.
(Emphasis added.)
According to the court, the change in wording in this provision was made to reflect
new general requirements that a state-approved plan be developed before the conduct
of any archaeological activity. Sections 14 through 16, referenced above and codified
at Indiana Code §§ 14-3-3.4-14—16, provide for, respectively: (1) the adoption of rules
establishing standards for plans; (2) the necessity of a plan; and (3) steps to take when
buried human remains are disturbed. Section 15, governing the necessity of a plan
provides, in particular, that:
(a) A person who disturbs the ground for the purpose of discovering artifacts or
burial objects must do so in accordance with a plan approved by the
department....
(b) A person who recklessly, knowingly, or intentionally violates this section
commits a Class A misdemeanor.
The term “plan” is further defined as “an archaeological plan for the systematic
recovery, analysis, and disposition by scientific methods of material evidence and information about the life and culture in past ages.”
While the court acknowledged that nothing in chapter 3.4 “explicitly” provides that
the law applies only to state property or to private property, it also noted that specific
provisions in the Act would be “superfluous” if the law were not intended to apply to
private property. In support of this observation, the court noted that section 13 specifically indicates that a plan is not required for: (1) surface mining activities that are
regulated under Indiana Code § 13-4.1; (2) cemeteries and human remains subject to
Indiana Code § 23-14; (3) the disturbance of earth for an agricultural purpose; and (4)
the collection of any object (other than human remains) that is visible on the surface of
the ground. The court then reasoned that these kinds of activities are of the type
usually performed on private property rather than state-owned or leased property and
thus this section would serve no purpose if the statute applied only to state-owned or
leased property.
Similarly, the court noted that the law prior to 1989 already prohibited the
disturbance of “ground of state owned or leased property without a permit if anything of
historical significance was on the property.” From this, the court deduced that section
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15, described above, would have added nothing to the law “unless it is interpreted as
expanding the scope of coverage by prohibiting the disturbance of any ‘ground’ for
purposes of discovering artifacts or burial objects without an approved plan (emphasis
added).” The court also found it significant that the legislature had not specifically
restricted section 15 to only “the ground of state owned or leased property” as it had in
section 7, above.
The court then turned its attention to the underlying policies of the Act, finding that
“the purpose of the Act is best effectuated by construing the Act to include private, as
well as stated owned, property.” The court stated:
The purpose of the Historical Preservation and Archeology Act is to further
our understanding of the state’s heritage and historical culture by preserving
and studying what has been left behind. Obviously, not all sites of historical or
archeological significance are located on property owned or leased by the
state.... Through the amendments, the state may regulate activities on private
property that affect our historical and archeological culture, thus, the state is
better able to discover and preserve more of our heritage. This is the purpose
of the Act and is best effectuated by construing the Act to include private, as
well as state owned, property.
Significantly, the court also found support for its ruling in the recent opinion by the
U.S. Court of Appeals for the Seventh Circuit in United States v. Gerber, No. 92-2741
(7th Cir. Jul. 20, 1993) [12 PLR1119]. In that decision, the Seventh Circuit upheld a
conviction under a federal statute, the Archaeological Resources Protection Act of 1979,
16 U.S.C. § 470ee(c), finding that the law applied to privately-owned property even
though it only explicitly referred to publicly-owned lands. In this case, the Gerber court
reasoned that its interpretation furthered the Act’s purpose, namely, “to secure, for the
present and future benefit of the American people, the protection of archaeological
resources and sites....” The Indiana court attached significance to the fact that the
Seventh Circuit had interpreted the statute at issue in this case as applying to privatelyowned property. For further discussion on Gerber, see "Conviction for Unlawful Looting
Upheld, Seventh Circuit Rules that ARPA Criminal Sanctions Apply to Archaeological
Resources Stolen from Private Property," 12 PLR 1119 (1993).
The decision of the Indiana Court of Appeals in Whitacre v. State of Indiana, that the
Indiana Historic Preservation and Archeological Act applies to privately-owned property,
is an important ruling for archaeological preservation in the state. The ability to regulate
all sites of historical or archaeological significance, whether publicly or privately-owned,
is critical to the protection of these resources and the, information they contain.
[Douglas R. Denmure of Aurora, Indiana represented Robert Whitacre. Linley E.
Pearson, Attorney General of Indiana, and May Ann Habee, Deputy Attorney General,
represented the State of Indiana and the Department of Natural Resources.]
From Preservation Law Reporter, October 1993, 12 PLR 1161
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